Wade v. State, A08A1647, DUI, Similar Transactions, the Georgia Court of Appeals essentially admits that similar transaction evidence in DUI cases is bad law.  Georgia is the only state in the union that allows similar transaction evidence to come in as evidence of “bent of mind” which is just another way of saying bad character evidence.

In DUI cases, Bent of Mind is typically the only reason evidence of prior DUIs ever is presented to the jury.  Georgia law has always recognized the long-standing principle in non-DUI contexts and the Wade court said, “that evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or similar manner on another occasion and thereby putting the accused character in evidence.”

The Wade Court further found that no proper purpose exists to support the admission of a prior DUI offense as it does not tend to prove intent, identity, motive, plan, scheme, but rather to introduce evidence of the defendant’s bad character. As DUI is not a crime of specific intent, criminal intent in a DUI case does not mean an intention to violate the law or to violate a penal statute but means simply to intend to commit the act which is prohibited by a statute. Howard v. State, 222 Ga. 525 (1966); Kennedy v. State, 46 Ga. App. 42 (1932); Balark v. State, 81 Ga. App. 649 (1950). DUI is a strict liability offense like speeding. Therefore, the intent is not at issue.  Identity is rarely at issue. Bent of mind is simply another word for evidence of the bad character of an independent crime or act.  Therefore, in weighing probative value versus prejudice which is the trial court’s only job in admitting similar transaction evidence, the probative value of similar DUIs is acutely if not fatally diminished.

Accepting bent of mind as a basis for a DUI similar transaction may vary well violate the fundamental due process rights of a defendant like his right to a fair trial under both the U.S. and Georgia Constitutions.

The Court of Appeals in Wade, supra, indicated that it agreed that bent of mind and course of conduct as a basis for a DUI similar transaction are fatally flawed but felt constrained to rule that it was allowable based on the Supreme Court holdings in Pecina v. State, 274 Ga. 416 (2001), Cunningham v. State, 255 Ga. 35,37(1985); Tam v. State 232 Ga. App. 15, 15-16(1998).

We can only hope the Georgia Supreme Court or the Georgia Legislature will hear the cry of Judges Blackburn, Miller, and Ellington and justice will roll down like water.